AB v CD & Ors

In surrogacy cases where no parental order has been made, commissioning adults remain unable to acquire legal parenthood unless the statutory conditions are satisfied. The court must determine the children’s welfare by reference to the statutory welfare framework and the Convention rights engaged. Biological parenthood carries no broad presumption that overrides welfare. A person’s practical and psychological role in the children’s lives is relevant, but the label of psychological parent is not decisive. Where legal parenthood cannot be rectified, wardship, child arrangements orders and restrictions on parental responsibility may secure the children’s welfare, although those orders do not have the transformative effect of a parental order.

The proceedings concerned twins born in India in 2010 following a surrogacy agreement. Their biological parents were the first and second respondents, but the surrogate mother and her husband were the children’s legal parents because no parental order had been sought. The applicant, the first respondent’s husband, sought parental responsibility and child arrangements orders. The respondents also sought child arrangements orders, while the applicant and first respondent sought wardship and restrictions on parental responsibility. The court determined allegations of domestic abuse and the children’s future welfare, including their relationship with the second respondent.

1. Fact-finding and absence. The court proceeded in the second respondent’s absence under Family Procedure Rules, rule 27.4, having found that he had notice and had chosen not to participate. The first respondent proved her allegations on the balance of probabilities. The second respondent’s allegations were dismissed.
2. Legal status. Under Human Fertilisation and Embryology Act 2008, ss 33(1), 35(1) and 38(1), the surrogate mother and her husband were the children’s legal mother and father. The first and second respondents could not obtain parental responsibility under s 4 of the Children Act 1989, because the second respondent was not the statutory father and the first respondent was not the legal mother. The applicant could not obtain parental responsibility as a step-parent under s 4(a) because he was not married to a legal parent.
3. Welfare. The court’s paramount consideration was the children’s welfare under s 1 of the Children Act 1989, subject to the welfare checklist and Articles 6 and 8. Where the child’s Article 8 rights conflict with a parent’s rights, the child’s rights prevail. There was no broad natural-parent presumption. The applicant’s psychological and practical parenting role was relevant to welfare, but the court focused on the children’s actual and future relationships rather than labels.
4. Orders. The children were made wards of court. A child arrangements order was made in favour of the first respondent and applicant. No order was made as to contact with the second respondent; he was permitted to withdraw his child arrangements application, and his parental responsibility application was dismissed. The exercise of the surrogate parents’ parental responsibility was restricted.